BB6 v State of New South Wales

[2021] NSWSC 1516

Supreme Court

New South Wales

Medium Neutral Citation:

BB6 v State of New South Wales [2021] NSWSC 1516

Hearing dates:

25 March 2021

Date of orders:

03 September 2021

Decision date:

03 September 2021

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Leave refused to the plaintiff to file the proposed Amended Statement of Claim in the form of Annexure A to the affidavit of the plaintiff’s solicitor dated 12 February 2021.

(2)   Plaintiff to pay the costs of the State of NSW and the Corporation of the Notice of Motion filed 12 February 2021.

(3)   Dismiss the Notice of Motion filed 12 February 2021.

(4)   Stand proceedings over for further directions on Friday 17 September 2021.

(5)   Liberty to apply.

Catchwords:

CIVIL PROCEDURE – pleadings – application for leave to file an amended statement of claim – form and content of pleading – whether the proposed amended statement of claim properly pleads the causes of actions alleged – whether requisite detail and specificity of pleadings – leave refused

Legislation Cited:

Child Welfare Act 1939

Civil Liability Act 2002

Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018

Limitation Act 1969

Limitation Amendment (Child Abuse) Act 2016

Uniform Civil Procedure Rules 2005

Cases Cited:

DC v State of New South Wales [2016] NSWCA 198

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Niass v State of NSW [2020] NSWSC 1753

PWJ1 v State of NSW [2020] NSWSC 1235

United Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council; [2015] NSWCA 320

Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

BB6 (P)
State of NSW (D1)
Catholic Archdiocese (D2)
CJES (Applicant)

Representation:

Counsel:
S McCarthy (P)
T Buterin (D1)
D Stretton (Applicant)

Solicitors:
Norwest Lawyers (P)
Crown Solicitors (D1)
Thomson Geer (Applicant)

File Number(s):

2020/164406

Publication restriction:

This judgment is an edited version of a judgment: [2021] NSWSC 1107, the publication of which is suppressed by order of the Court made on 25 November 2021.

Judgment

1. In June 2020, BB6, the plaintiff, commenced proceedings claiming damages against the State of New South Wales (“the State”) and a Catholic Archdiocese (“the second defendant”), for injuries sustained as a consequence of sexual, physical, verbal and emotional abuse which she alleges took place whilst she was a resident of two separate institutions, Institution A and Institution B.

2. In addition, the plaintiff claims damages against the State for its alleged negligence in failing to intervene and take action to protect her whilst she was being brought up by her parents in their home.

3. It became apparent to the plaintiff’s solicitors that the named second defendant, the Catholic Archdiocese, had nothing to do with the operation of Institution A. As a consequence, judgment was entered for the second defendant by consent on 19 November 2020.

4. Enquiries made by the solicitor for the plaintiff revealed that Institution A, where the plaintiff was a resident for about six months, was conducted by an unincorporated association.

5. I was informed by affidavit at a directions hearing held on 11 December 2020, that the plaintiff had served a proposed Amended Statement of Claim (“the first ASOC”) on the other parties on 14 October 2020. The State raised some matters of concern by correspondence and indicated that it did not consent to the filing of the first ASOC.

6. On 3 December 2020, a further proposed Amended Statement of Claim (“the second ASOC”) was served by the plaintiff on the State, which was at that time the only active defendant. In addition to making amendments, the second ASOC sought to join a “support” corporation as the third defendant, thereby taking the place of the previous second defendant.

7. The State indicated that whilst it did not oppose the addition of the Corporation as a defendant, it opposed the filing of the second ASOC and declined to provide its consent to the second ASOC being filed.

8. As a consequence, on 11 December 2020, I made orders requiring the plaintiff to serve a Notice of Motion accompanied by any affidavits in support together with submissions, seeking a grant of leave for the filing of the second ASOC.

9. A proposed Amended Statement of Claim attached to an affidavit was filed together with a Notice of Motion on 12 February 2021. Submissions in support of the Motion were not filed by the plaintiff.

10. The State was ordered to file evidence and submissions in opposition to the grant of leave by 5 March 2021.

11. When the matter was called on for hearing on 25 March 2021, it was apparent that neither party had complied with the order requiring the filing of submissions. The State had not complied with the order to file any affidavits that it might have wished to.

12. It sought to file and read an affidavit at the commencement of the Notice of Motion, but leave to do so was refused on the basis of its failure to comply with the Court’s directions, and the lack of time for the plaintiff to read and understand the affidavit to be relied upon.

Notice of Motion

13. The Notice of Motion sought the following orders:

“1.   Leave be granted to file an Amended Statement of Claim in the form of Annexure A to the affidavit of [the plaintiff’s solicitor], dated 12 February 2021;

2.   That the defendant pay the costs of, and incidental, to this motion; and

3.   Any other orders that this Honourable Court deems proper.”

14. The proposed Amended Statement of Claim annexed to that affidavit was in fact a version which had not previously been served on the State but was a further proposed Amended Statement of Claim (“the third ASOC”).

15. At the hearing of the Notice of Motion, the State opposed a grant of leave to file the third ASOC. The lawyers for the Corporation, although recognising they had no right of appearance, joined in the submissions of the State.

16. This judgment deals with the Notice of Motion for a grant of leave to file the third ASOC.

17. For the reasons which follow, leave to file the third ASOC ought not be granted.

Proposed Third Defendant

18. It is appropriate to deal with a number of matters with respect to the proposed third defendant.

19. According to the pleadings, Institution A was operated and controlled by an unincorporated association and which was at all relevant times an unincorporated association.

20. The proposed third defendant is the Corporation which is not the unincorporated association. It is a separate and incorporated legal entity.

21. The pleading against the Corporation is in the following form insofar as it deals with how it is said that it is a party and properly sued in the proceedings:

“7B The Third Defendant is sued pursuant to the provisions of Part 1B, Division 4 of the Civil Liability Act 2002 (NSW) (CLA) as the representative of the former officeholders of the Former Congregation and with respect to their acts and admissions (sic) and liabilities in the care, management and control of [Institution A].

…

7D    The third defendant is a religious congregation of the Catholic Church with one of its primary roles being, at all relevant times, the provision of care, welfare and accommodation services for the benefit of children.

7E   At all material times, the third defendant had the care, management and control [of] [Institution A].

8   Between 27 June 1977 and 16 December 1977, the third defendant was the occupier and controller of [Institution A].”

22. Part 1B (including Division 4) of the Civil Liability Act 2002 (“the CLA”) was introduced by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018. It is entitled “Child Abuse – liability of organisations”. Division 4 is entitled: “Proceedings against unincorporated associations”. The Part was proclaimed to commence from 1 January 2019. Relevantly, as is recorded in cl 45 of Schedule 1 of the CLA, Division 4 of Part 1B extends to child abuse proceedings in respect of abuse perpetrated before the commencement of that Division. In that way, this Division has both prospective and retrospective operation. Other provisions of Part 1B have a prospective operation only.

23. It is to be noted that the provisions of s 6C, which are to be found in Division 1 of Part 1B of the CLA, are unsurprisingly not pleaded or relied upon. This section provides that an organisation and any successor of that organisation are, for the purposes of Part 1B of the CLA, taken to be the same organisation. The section does not have retrospective operation and cannot be relied upon in these proceedings.

24. However, the pleading alleges that the Corporation is one and the same organisation as the unincorporated association. The terms of paragraphs 7D, 7E and 8 of the third ASOC set out above at [21] makes this plain.

25. I am conscious that no specific argument was addressed to this issue in the course of very brief oral submissions. The way in which the cause of action with respect to the time the plaintiff spent at Institution A is attributed to a proposed “proper defendant”, is addressed here so that it can be remedied in any further pleading.

26. It is, for that reason, appropriate to draw attention to the issue. In so doing, I also accept, although there is no evidence about this, that it may be possible that the Corporation has been named as the relevant defendant at the request or suggestion of the unincorporated association or else one or more of its members. Even if this is so, the provisions of Division 4 of Part 1B of the CLA cannot be ignored.

27. It is, accordingly, appropriate to identify the way in which Division 4 of Part 1B of the CLA is structured and how it is intended to operate in practice.

28. The first matter is that differently from the usual position, proceedings of the kind here brought by the plaintiff may be commenced or continued against an unincorporated organisation in its ordinary name. The plaintiff is entitled to use the name of the organisation or “… a name reasonably sufficient to identify the organisation as if the organisation had legal personality”: s 6K of the CLA.

29. Where that occurs, that unincorporated organisation is itself entitled (providing consent is obtained) to appoint an entity (i.e. a body which is capable of legally suing and being sued, and which may include the trustees of a trust) as a “proper defendant” for the organisation: s 6L of the CLA.

30. Any such appointment must be made in accordance with r 7.4 of the Uniform Civil Procedure Rules 2005 (“the UCPR”). That rule makes it a precondition to the appointment of an entity as a proper defendant that the entity’s consent in the approved form has been filed. That approved form, Form 162, makes it plain that such consent follows the commencement of proceedings against the unincorporated organisation, which then engages in the process described.

31. An entity so appointed must be suitable: see s 6M of the CLA.

32. Once appointed as the proper defendant, the entity has all of the powers and responsibilities set out in s 6O of the CLA to enable it to conduct the litigation on behalf of the unincorporated organisation. It is notable that s 6O(c) provides that the unincorporated organisation “must continue” to participate in the proceedings. Pursuant to s 6O(d), the unincorporated organisation may be the subject of substantive findings by the Court in the proceedings as if it had a legal personality. Such findings would, if made, extend to findings of negligence, or vicarious liability for the conduct of an individual.

33. The provisions of Division 4 of Part 1B of the CLA do not convert the proper defendant into the original tortfeasor. On the contrary, the provisions of Division 4 recognise that the proper defendant has a separate existence from the unincorporated organisation and is not deemed in any way to be the original tortfeasor. The proper defendant is entitled to fully conduct the litigation including relying on any defence or immunity that would be available to the unincorporated organisation. That is because it is the proper defendant which is ultimately obliged to meet any award of damages obtained by a plaintiff, because of the conduct of the unincorporated organisation.

34. It is an error to interpret Division 4 of Part 1B as enabling a plaintiff to simply substitute a third-party entity for an unincorporated association as if the third‑party organisation is in truth the original tortfeasor and plead a cause of action on that basis. On the contrary, Part 1B erects a scheme which enables litigation against unincorporated associations to be brought and continued to judgment and for any judgment obtained against an incorporated organisation to be enforced against another entity that falls within the definition of a “proper defendant” and which has been joined to, and is entitled to, fully participate in the proceedings.

Pleaded Abuse

35. The plaintiff’s claim for damages arises from three separate and distinct periods in her life during each of which she pleads that she was subjected to various forms of abuse by a number of different people in different circumstances, generally at unspecified times. Those three periods were:

1. whilst she lived with her parents at home (“the first period”);

2. whilst she lived at Institution A which was under the control of the unincorporated association (“the second period”); and

3. whilst she lived at Institution B which was under the control of the State (“the third period”).

36. The State is alleged to be liable for each period of abuse. The unincorporated association is alleged to be liable only for the second period of abuse.

37. The plaintiff pleads the first period of abuse as occurring over a seven year period between the time when she was almost four years old until about the age of eleven, and whilst she was living at home with her parents. This first period occurred at a time prior to the plaintiff being a ward of the State.

38. The plaintiff does not plead directly as a fact that she was physically, sexually, or verbally abused during this period, nor does she plead directly as a fact who is said to have perpetrated that abuse.

39. Rather, in a somewhat tangential way, the plaintiff chooses to plead the abuse which she suffered by alleging that the State “… was aware of and/or had caused or contributed to significant trauma that the plaintiff had experienced in and around her family home”. This pleading combines an allegation of knowledge of behaviour of various individuals and the causation of trauma. It is entirely unclear whether the use of the words “significant trauma” refer to the fact of the perpetration of the abuse, or the consequence upon the plaintiff of the abuse to which reference is made during the first period.

40. Particulars of the knowledge of the State are set out under the heading “… Childhood Trauma known to the First Defendant prior to Institutionalisation” are then pleaded. Of the 14 particulars pleaded only three describe sexual, physical or verbal abuse. They are as follows:

“(c)   At the age of five years, the plaintiff was frequently vaginally raped ....

…

(e)   The plaintiff was regularly physically beaten by her parents.

(f)   The plaintiff was frequently verbally abused by her parents.”

41. I infer that because of her young age at the time, the plaintiff cannot be any more specific in these particulars.

42. The other “particulars” contain statements which do not allege physical, sexual or verbal abuse but, rather, address the surrounding circumstances relating to the plaintiff’s life at home with her parents. An example of these is as follows:

“(j)   The plaintiff’s parents were completely incapable of taking care of her.

(k)   The plaintiff’s parents were hopelessly inadequate parents.

(l)   The plaintiff’s parents lived a lifestyle that was wholly inconsistent with the responsible parenting of the plaintiff.”

43. It may be that these conclusions about the plaintiff’s parents were justified by observations made by visitors to the home. It may be that these particulars which are conclusions about the capacity of the plaintiff’s parents to care for her are justifiably drawn on the basis of material available to the plaintiff’s lawyers. However, these are not particulars of any trauma suffered by the plaintiff, let alone any physical, sexual or verbal assault. They seem to be drawn by the State, or else available to be drawn on the basis of observations and information in the State’s possession.

44. The sexual and physical abuse during the first period is further referred to in the following terms which seem to relate to the consequence of the State not taking any action to remove the plaintiff from her home:

“22A   Despite the first defendant’s knowledge that the plaintiff was suffering abuse in the family home, the plaintiff was permitted or required to remain within the family home until …, where she continued to be frequently and brutally raped and otherwise sexually and physically abused.”

45. This paragraph, again, does not constitute a direct pleading of abuse but, rather, as earlier observed, pleads the consequences of an alleged failure on the part of the State.

46. The second period of abuse is that which was alleged to have occurred whilst the plaintiff was a resident at Institution A, conducted by an unincorporated association for a brief time.

47. The third ASOC does not plead how the plaintiff came to be a resident at Institution A. All that is said is that the State “… made arrangements for the plaintiff to be sent to …” Institution A. Whether the plaintiff was then a ward of the State, or else had been committed by an order of the Children’s Court, is not disclosed.

48. The plaintiff pleads that she was the victim of “… sustained sexual, physical, connected verbal and emotional abuse” and, in the same paragraph, that she suffered “… vicarious trauma through having witnessed the similar abuse of other children”. This pleading is accompanied by what is described as “Particulars of Sexual Abuse at [Institution A]”. Seven particulars were provided. Of these, only three refer to sexual abuse being perpetrated on the plaintiff. They are:

“(a)   On one occasion, the plaintiff was digitally penetrated by ZZ.

…

(c)   On multiple occasions, the plaintiff was gang raped by older residents of the institution.

(d)   In the premises pleaded at (c) above, such rapes included penile penetration of the plaintiff’s vagina, digital penetration and forced penile penetration of the plaintiff’s mouth.”

49. The other four particulars did not particularise any act or occasion of sexual abuse but, rather, described the possible circumstances of the priest being on the premises, and include allegations that the sexual abuse set out was witnessed by one or other persons who, it is to be inferred, were members of the unincorporated association, and that they did not act upon the disclosure of the sexual assault, alleged to have been perpetrated by ZZ.

50. Paragraph 26 of the third ASOC repeats that whilst at Institution A the plaintiff was the victim of serious physical abuse and suffered vicarious trauma through witnessing similar abuse of other children. Seven particulars were provided of the serious physical abuse. It is not appropriate at this stage to consider whether each of these constitutes physical abuse or, as pleaded, “serious physical abuse”. That will be a matter for the plaintiff to establish at trial.

51. Paragraph 27 of the third ASOC pleads the occurrence of frequent verbal abuse “connected” with the serious physical abuse referred to at [51] above. Two particulars of that abuse are set out. Again, it will be a matter to be determined at trial as to whether the conduct alleged constituted “connected abuse” as that term is used in s 6A(2)(c) of the Limitation Act 1969.

52. The third period of abuse relied upon in the third ASOC is pleaded as having occurred, when the plaintiff was a resident at Institution B. The basis upon which the plaintiff came to reside at that Institution is not pleaded.

49. In a similar way to the pleading of abuse at Institution A, paragraph 30 of the third ASOC alleges that whilst a resident at Institution B the plaintiff was a victim of frequent sexual and physical abuse, verbal abuse connected with serious physical abuse, and “… was also seriously physically abused by [the State] by way of repetitive, painful and oppressive child labour”. Appended to this paragraph are particulars of sexual abuse. Particulars of physical abuse, verbal abuse and abuse through “compulsory labour”, are pleaded in following paragraphs.

50. There are 13 particulars of sexual abuse. These particulars described occasions of sexual assault by QQ, the son of YY, whose task was to supervise the children living in Institution B. The plaintiff also particularised that she was sexually assaulted by another resident at Institution B. She finally particularised that she suffered a serious sexual assault at the hands of an older male resident who is not otherwise identified.

51. Each of the three individuals pleaded to have sexually abused the plaintiff at Institution B fall into the category of fellow residents of Institution B, although QQ was a resident there rather than as a person being cared for.

52. With respect to the serious physical abuse in paragraph 32, the plaintiff pleaded that she suffered serious physical abuse “… at the hands of, or at the direction of, [YY]”.

53. There are 25 particulars of the alleged serious physical abuse. They include that the plaintiff was, in an organised way, “… frequently made to physically fight other girls”, and that she was frequently “… beaten by older boys and older girls at [Institution B], such beatings included being punched to the face and body”. The balance of the particulars made allegations of physical assault or abuse at the hands of YY.

54. There is a further pleading of verbal abuse by YY. Eight particulars of that verbal abuse are recorded. Whether all of those particulars constitute verbal abuse will be a matter for the plaintiff to prove at trial.

55. Finally, the third ASOC at paragraphs 34 and 34A pleads that the plaintiff was ordered by YY to carry out extensive physical labour “… for the benefit of [the State]”, such labour being performed on a daily basis. Paragraph 35 contains this pleading:

“35.   In the circumstances and given the age of the plaintiff and the nature and duration of the labour, such labour constituted serious physical abuse.”

60. Twenty particulars of that serious physical abuse are then set out. The particulars provided of what is described as serious physical abuse, include the following:

“(b)   The plaintiff was required to perform daily menial cleaning activities for most of the premises.

…

(f)   The plaintiff was required to regularly rake leaves from the floor.

…

(i)   The plaintiff was required to perform garden work on the extensive grounds.

…

(o)   The plaintiff was required to polish brass signage in the institution.”

61. It is difficult to see how conduct of the kind described in these particulars, on the basis of the descriptions provided, could constitute physical abuse let alone serious physical abuse.

62. It will be observed that in the third ASOC, the plaintiff uses the expressions “serious physical abuse” and “connected verbal abuse”. The pleader does not define these. They are not expressions which have any identified meaning at common law. They are expressions used only in s 6A of the Limitation Act 1969. That section was introduced by the Limitation Amendment (Child Abuse) Act 2016, which commenced on 17 March 2016. It was intended to be retrospective. The expressions are used to indicate the components of “child abuse” for the purpose of the operative provisions in s 6A(1) of the Limitation Act to remove any limitation period for an action for damages for personal injury resulting from child abuse.

63. It is possible that such concepts may be appropriate to be pleaded by a plaintiff in reply to a limitation defence pleaded by a defendant, on the basis that no limitation period applies. However, it may be doubted that these expressions as opposed to the facts of what occurred which are relied upon, have any place in a Statement of Claim.

Causes of Action

64. It can be seen from the allegations of abuse that the actual perpetrators of any of the abuse have not been sued directly. Rather, each of the defendants is sought to be made liable in negligence either directly for a breach of a duty owed to the plaintiff, or else vicariously for the conduct of their employees, officers or associates. As well, the defendants are sought to be made liable in negligence for the conduct of a visitor to the premises, or other residents of the premises.

65. Two further causes of action are alleged against each defendant. First, the plaintiff alleges that conduct carried out by the individuals for whom each of the defendants is liable, was intended to injure the plaintiff or else was done with reckless indifference to the probability that the conduct would cause psychiatric harm. The pleading describes this as “… action on the case for the Deliberate and/or Reckless Infliction of Physical Injury”.

66. The second additional cause of action is one of “Trespass to the Person/Battery” by the servants or agents of the defendants for which it is alleged that each of the defendants is vicariously liable. The particulars of the conduct constituting the Trespass to the Person/Battery include conduct of the kind described in the particulars referred to above.

67. In these circumstances, and in order that each of the defendants can understand the cause of action pleaded against them and plead to the causes of action, it is necessary that all of these disparate causes of action be identified with clarity and precision in any pleading including the third ASOC.

Duty of Care

68. At paragraph 41, the plaintiff pleads the existence of a duty of care in the following terms:

“… first and third defendants owed the plaintiff a duty of care to act reasonably in its care of the plaintiff and to set in place reasonable precautions for the safety and protection of the plaintiff.”

69. That duty, as becomes apparent from paragraphs 41A – 41H inclusive, does not identify with respect to the first defendant any provision of any statute, nor any power, which it is said that the State exercised, or could have exercised, and, acting reasonably, ought to have exercised. Nor does that pleading of duty alone or with any of the additional features of it, identify the basis upon which it is said that in respect of each of the periods of abuse, the State had a duty to act reasonably.

70. With respect to the unincorporated association, for which the proposed defendant, the Corporation, is alleged to be liable, the basis of a duty of care is not enunciated. It is possible, although this is not clearly pleaded, that the unincorporated association, were recipients of a delegation from the Minister for Youth and Community Services pursuant to the Child Welfare Act 1939, which may give rise to a duty in the exercise of that delegation. It is possible that the duty arose by reason of the fact that the plaintiff was a resident in the home and, having regard to her age and any other relevant factor, a common law duty of care arose. But there is no pleading of the nature or content of any such duty.

71. It may be possible to glean the nature and content of the duty from the extensive particulars of breach of duty or negligence which are pleaded in an omnibus way for all periods of abuse by reference to those particulars of breach. However, a defendant ought not be required to search out the duty alleged against it in that way.

72. In the 24 particulars of negligence alleged against the State which cover all three episodes of sexual abuse, there are a number of particulars which deal with the first period. They are in the following form:

“(m)   Failing to properly investigate and/or act upon the plaintiff’s disclosures of sexual abuse.

(n)   Failing to report the plaintiff’s complaints of sexual abuse to the police for proper investigation.

(o)   Failing to properly carry out competent inspections of the plaintiff’s mother’s home in a timely or appropriate manner.

…

(u)   Failing to take reasonable steps to affect (sic) the removal of the plaintiff from the care of her mother at the point in time when the first defendant possessed sufficient knowledge to determine that the plaintiff was in danger.

(v)   Failing to properly assess the living arrangements of the plaintiff in the family home.

(w)   Failing to act on its direct knowledge that the plaintiff was being sexually and physically abused in the family home.

(x)   Failing to immediately submit the plaintiff to a regime of psychiatric treatment when it became aware of the abuse she had suffered in the family home.

(v)   Failing to select a safe institution to accommodate the plaintiff following the accumulation of knowledge particularised at Paragraph 15 above.”

73. What can be taken from these particulars is, I would infer, that officers and employees of the Department of Youth and Community Services engaged in the administration of the Child Welfare Act had a statutory power to act, but failed to take reasonable steps to exercise those powers so as to protect the welfare of the plaintiff in circumstances where they were aware that the plaintiff had been sexually and physically abused. However, as earlier noted, the relevant power is nowhere pleaded.

74. The duty of care which is pleaded is elusive. It is at best to be found in the following paragraphs:

“41.   In the alternative, the first and third defendants owed the plaintiff a duty of care to act reasonably in its care of the plaintiff and to set in place reasonable precautions for the safety and protection of the plaintiff.

41A.   The duty of care owed by the first defendant arose firstly through the various servants and or agents of the Department including the DOCS worker, other DOCS workers, case managers, district managers and other employees charged with the supervision and oversight of the plaintiff’s living conditions between 21 May 1970 and 27 June 1977.

…

41G.   The duty of care owed by the first and third defendant was non delegable.”

75. As best as appears from the pleading, the circumstances of the plaintiff’s upbringing by her parents came to the attention of an officer of the Department of Youth and Community Services (“DOCS”) either because of direct inspection of the plaintiff’s home or else by direct reporting of the abuse by the plaintiff to the departmental officer: see paragraphs 15 and 16. Apparently such knowledge is to be found within a file kept with respect to the plaintiff.

76. However, the pleading does not identify what power or function was held or was capable of being exercised by the officer who had obtained the knowledge referred to in the pleading.

77. In DC v State of New South Wales [2016] NSWCA 198, a case concerned with whether officers of DOCS were obliged to report sexual abuse, Basten JA said at [13]:

“13.   The scope of any duty of care owed to the appellants must be identified at a level of generality consistent with the need for it to arise prospectively and not retrospectively in the light of the deleterious consequences suffered by the appellant. Nevertheless, any formulation, particularly in circumstances where the conduct of the respondents derives from the exercise of, or failure to exercise, statutory powers, must relate specifically to the nature of the power and the circumstances in which it is engaged.”

78. Sackville AJA, at [405]-[408], noted that the duty of care in DC was appropriately described as being a duty to take reasonable care in the exercise of a specified provision in the Child WelfareAct. That power, upon which the Director of the Department of Youth and Community Services in fact embarked in that case, was contained in s 148B(5) of the Child WelfareAct.

79. Ward JA, at [272]-[276], also considered the nature and content of the common law duty as directly derived from the particular statutory power there relied upon.

80. Basten JA noted that it was necessary to be precise as to the duty owed by the respondent and the basis of the proposed liability of the State. His Honour said at [15]:

“15. The Statement of Claim … alleged numerous particulars of both defendants’ “awareness” of the circumstances of the complainants. However, the legal basis for a direct duty owed by the State was not identified. The State is a juristic person, but, like a corporation, it will act through individuals and its “awareness” of facts will derive from that of its officers. No statute or common law principle was identified which imposed duties on the State, as an entity. While the State was sued pursuant to s 5(2) of the Crown Proceedings Act 1988 (NSW), neither that section nor its predecessors created a cause of action.”

81. As his Honour went on to note at [19], the primary obligation to care for and protect children lies with the parents of a child or their broader family. Statutory powers of the State, exercised through its various officers, are only engaged when that primary protection fails.

82. It is clear from DC that the obligation falls on the plaintiff claiming damages in the circumstances of the first period of abuse, to clearly identify when pleading the nature and content of a duty of care, what the powers were that ought to have been exercised, by whom and when the powers ought to have been exercised.

83. The third ASOC, in dealing with the State’s liability in negligence for the first period of abuse, entirely fails to engage with the existence of the relevant statutory powers, and the description of the nature and content of the duty of care owed by relating that duty specifically to the power, and how it ought in the circumstances be exercised. As well, the description of the duty as residing in the State in the way described in paragraph 41A (set out above at [74]) fails to address the issues discussed in PWJ1 v State of NSW [2020] NSWSC 1235 and Niass v State of NSW [2020] NSWSC 1753. In those respects, the third ASOC is a defective pleading.

Risk of Harm

84. Once a duty of care is identified, it needs to be related to the risk of harm which is pleaded. Here, the risk of harm which is pleaded is, although only one, complex and convoluted, as it attempts to cover all that has happened to the plaintiff during each of the three periods.

85. The risk of harm is pleaded in the following form:

“43.   At all material times, the plaintiff was at risk of harm from suffering psychiatric, emotional, physical and sexual injuries if she was abused and/or neglected in the manner pleaded at Paragraphs 12(b), 15, 18-22(a), 25-27 and 30-35 above and was subjected to the negligence pleaded at Paragraphs 53 and 53A below.”

86. It is apparent from this pleading that it is intended that, notwithstanding the differing circumstances in which each of the episodes of abuse occurred; the different identities of the defendants and the perpetrators; the very different circumstances in which the abuse occurred; and the quite different forms of abuse the plaintiff is able to identify a single risk of harm applicable in all circumstances.

87. This is problematic. As Basten JA said in Garzo v Liverpool/Campbelltown Christian School. [2012] NSWCA 151 at [7]:

“Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff.”

88. Leeming JA noted in United Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 at [103] that the Civil Liability Act makes liability of a defendant “… dependent upon the identification of the risk of harm”.

89. By way of example, with respect to the first period, the sexual abuse which the plaintiff suffered was that occasioned by a male neighbour who apparently sexually abused the plaintiff, according to the allegations pleaded, at the invitation of the plaintiff’s mother. The physical abuse that occurred and which caused the plaintiff to suffer injury, was that perpetrated by her parents. The risk of harm, namely that the plaintiff would suffer injury by way of physical or mental harm, must relate to the circumstances in which this was occasioned. If it does not, then the precautions which it is alleged ought to have been taken cannot be properly understood and pleaded to by a defendant.

90. The pleading of the risk of harm is constructed by reference to identified paragraphs of the third ASOC which contain multiple allegations, and also different surrounding circumstances. Such a pleading wholly fails to address with the necessary precision the risk of harm against which it is said that each defendant owed a duty to the plaintiff.

91. As well, the risk of harm is pleaded by the plaintiff by reference to breaches of duty. The pleading in that way fails to address a proper pleading of a risk of harm required by the authorities to which earlier reference has been made. It is pleaded by reference to hindsight and not prospectively as it should be.

92. In these respects, across the three periods, for the cause of action in negligence, the third ASOC is deficient.

Breach of Duty

93. In light of the conclusions I have reached about the inadequacies of the pleading of a Duty of Care and the risk of harm, it is unnecessary to further consider the allegations of breach of duty which are particularised against each defendant at some length. That is because any allegation of a breach of duty is required by s 5B(1) of the CLA to be articulated by reference to the pleaded risk of harm. It will be necessary in any further proposed pleading for close attention to be paid to this requirement.

Vicarious Liability

94. There is also a pleading that each of the defendants is vicariously liable for the conduct of each of the perpetrators. A claim that either defendant is liable to a third party vicariously for the conduct of a perpetrator depends upon the identification of, and the existence of, a form of relationship between them which is sufficient to justify a conclusion of such vicarious liability.

95. In Prince Alfred College Incorporated v ADL [2016] HCA 37; (2016) 258 CLR 134 at [46]‑[47], a case in which the plurality, noting that no general basis for establishing vicarious liability had been identified by the common law, said that it was appropriate to continue to identify on a case-by-case basis the factors which point to the existence of such liability. At [47], the plurality said of the vicarious liability of an employer for sexual abuse perpetrated by an employee:

“47.   Such a process commences with the identification of features of the employment role in decided cases which, although they may be dissimilar in many factual respects, explain why vicarious liability should or should not be imposed.”

96. At [81], the plurality articulated the relevant features which might be regarded as establishing vicarious liability. They said:

“81.   Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.”

97. Gageler and Gordon JJ, in their judgment at [128], noted that “… decisions concerning vicarious responsibility for intentional wrongdoing are particularly fact specific”.

98. As is apparent, there was not necessarily an employer/employee relationship between each defendant and each perpetrator. Some of the alleged perpetrators, for example YY, were employees, others clearly were not - a visitor ZZ, a neighbour or fellow residents. This variety of relationships means that it is necessary for any pleading of vicarious liability to set out the existence of factors as between the defendant and each of the particular perpetrators for whom it is said to be responsible. A mere assertion of the fact of vicarious liability does not provide the defendant with any understanding of how it is said their liability actually arises. The third ASOC simply does not engage in any such pleading. It is, in that respect, entirely inadequate.

Conclusion

99. The inadequacies identified in this judgment demonstrate that the third ASOC is not a pleading which accords with proper pleading principles, or one in respect of which leave ought to be granted to file it.

100. I venture to repeat what I said in PWJ1 at [93], after a review of the authorities on appropriate pleading in cases such as this one:

“93. And so it is that the detail and specificity of the pleadings in each individual case are of critical importance. There is no room for general, broadly phrased pleadings which are applied to a broad range of claims without discrimination, and which do not pay careful attention to the relevant facts. Mere rubrics and hollow incantations are not a substitute for proper pleadings which pay attention to the principles discussed as well as the requirements of the CLA and the Uniform Civil Procedure Rules 2005.”

101. Leave must be refused to file the third ASOC.

Costs

102. There is no reason why costs should not follow the event. The plaintiff has been unsuccessful in pleading appropriately the causes of action upon which she proposes to rely.

103. The plaintiff should pay the costs of the State and the Corporation.

Orders

104. I make the following orders:

1. Leave refused to the plaintiff to file the proposed Amended Statement of Claim in the form of Annexure A to the affidavit of the plaintiff’s solicitor dated 12 February 2021.

2. Plaintiff to pay the costs of the State of NSW and the Corporation of the Notice of Motion filed 12 February 2021.

3. Dismiss the Notice of Motion filed 12 February 2021.

4. Stand proceedings over for further directions on Friday 17 September 2021.

5. Liberty to apply.

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Decision last updated: 25 November 2021